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Editor: Colin Miller
Univ. of South Carolina School of Law

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Saturday, November 17, 2007

Things To Do In Dener When You're Dead: Travis Henry Presents Polygraph Defense To NFL

Denver Broncos' running back Travis Henry recently tested positive for marijuana, and he faces a year-long suspension unless he convinced the NFL of his innocence when he presented his case on Friday in Phoenix.  The most interesting thing I discovered from articles discussing Henry's situation is that two time Super Bowl winning coach Mike Shanahan might make want to consider a second career as a lawyer.  Shanahan has argued Henry's innocence by claiming that after Henry tested positive, he passed a lie detector test and had a recent hair sample come back negative for marijuana.  According to Shanahan, "When he went back and took the hair sample and that was negative, the lie detector test and that was negative, we'll let due process take care of itself."  It sounds like Shanahan has been reading some legal casebooks, or at least watching "Law and Order."

Of course, polygraph or lie detector results are generally inadmissible in court, but this prohibition does not prevent the NFL from considering them in deciding whether to suspend a player.  Indeed, as I noted recently, employers are increasingly using the test to screen job applicants.  Of course, the fact that Henry was suspended in 2005 for violating the league's substance abuse policy and was still part of its drug program when he tested positive will not help his case.  Nonethless, yesterday, the polygraph examiner who tested Henry gave testimony at his hearing yesterday, and the NFL should issue a ruling on Tuesday.

Another interesting thing I noticed from the stories is how the authors construed polygraph evidence.  For instance, in one Rocky Mountain News article, the author claimed that polygraph results are inadmissible in court because they reward two kinds of people:  those who are telling the truth and those who are really good liars.  I wonder if this is why most non-lawyers think that polygraph results are inadmissible?  In reality, there are many reasons why polygraph results are inadmissible, ranging from the fact that the test monitors stress and not "truthfulness," to Justice Thomas' facmous statement that "the jury is lie detector."  Even ignoring these other factors, however, I think that the author (and maybe most non-lawyers) reverses the thinking of most judges, which is that polygraph results are generally inadmissible because they penalize two kinds of people:  those who are really lying and those who are nervous truthtellers, or false positives.

-CM

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